Published 4:00 am, Tuesday, June 6, 2006

The U.S. Supreme Court returned to the incendiary issue of race in public schools Monday, agreeing to decide two cases that have the potential to affect student enrollment in every state except -- according to most legal analysts -- California.

The justices granted review of appeals by white parents challenging programs in Seattle and Jefferson County, Ky., that take race into account to achieve or preserve desegregated schools. The cases, to be heard this fall, give the court's increasingly conservative majority a chance to narrow -- perhaps even overturn -- a 2003 ruling allowing limited use of race-based affirmative action in higher education.

In the 2003 case, a 5-4 majority led by Justice Sandra Day O'Connor said the University of Michigan law school could take applicants' race into account as one factor among many to promote diversity.

That ruling, the most important in a civil rights case in a quarter century, has led to several lower-court decisions allowing consideration of race in employment and contracting programs as well as public-school admissions, including the two cases accepted for review Monday.

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According to one group opposed to affirmative action, more than 1,000 school districts in the United States have race-based admissions, two-thirds of them voluntary measures not ordered by any court.

"You've got a school district stepping in and saying, 'Your child isn't the right race, so you can't send your child to the school of your choice,' " said attorney Russ Brooks of the Pacific Legal Foundation. He said the court's rationales for allowing racial considerations in 2003 -- to promote diversity in classroom viewpoints and in the legal profession -- shouldn't apply to children in public schools.

On the other side, Harvard Professor Gary Orfield, director of the university's Civil Rights Project, said the court's ruling in the two new cases, due by June 2007, could lead to "the resegregation of American public schools and potentially colleges."

Regardless of the ruling, however, opponents of racial considerations in student admissions may well have a trump card in California: Proposition 209, the 1996 initiative that barred preferences based on race or sex in public employment, contracting and education.

Federal law usually overrides state law. But if the Supreme Court rules that racial considerations are allowed -- but not required -- in public school enrollment, California would be free to prohibit such considerations under Prop. 209, said lawyers who take opposing positions on the racial issue.

"Whichever way the Supreme Court goes, the most they're going to say is that using race a little bit was permissible under those circumstances. California under 209 has already said it's not going to do that," said David Levine, a San Francisco attorney and law professor who represented Chinese American parents in a lawsuit that eliminated use of race in San Francisco school admissions.

Although Prop. 209, a state constitutional amendment, does not prohibit race-based programs that are ordered by a federal court, any such protections for the San Francisco admissions system were eliminated when a federal judge ended more than two decades of court supervision over desegregation in city schools last year, Levine said.

Vikram Amar, a professor at UC Hastings College of the Law who favors race-based affirmative action programs, agreed with Levine that Prop. 209 would stop any California public school from using race in enrollment, even if the Supreme Court allowed it nationally.

"I think race-based pupil assignment falls under 209 because not every high school is equally attractive," and thus a school assignment can be considered a "preference," Amar said.

A state appeals court has already ruled that Prop. 209 prohibited racial restrictions on high school student transfers in Huntington Beach (Orange County). Similar suits are pending in Los Angeles and San Juan Capistrano (Orange County).

Still, some San Francisco Board of Education members said Monday they would move ahead with plans to reintroduce race as a factor in enrollments to reverse growing resegregation of the schools.

Since the use of race for desegregation was barred by a court-approved settlement in 2001, single-race enrollment at some city schools has risen above 80 percent. Several board members say they favor a system like the one in Seattle -- now before the Supreme Court -- that allowed a student's race to be considered when a school had more applicants than space. The board plans to have a new system in place by the 2007-08 school year.

"We still have an obligation in going forward with our own enrollment procedures and fairness procedures, so there's no reason to wait for the Supreme Court to act," said board member Dan Kelly. "Racial segregation is bad for the education of all children."

Another commissioner, Mark Sanchez, said the board expects its plan to be challenged under Prop. 209. "If the Supreme Court upholds the Seattle system ... Prop. 209 is a moot point," he said. "Federal laws would override a state initiative."

The Seattle plan, suspended since 2002 when it came under legal attack, was upheld in October by the Ninth U.S. Circuit Court of Appeals in San Francisco. A 7-4 majority said officials of the 46,000-student district had tried some race-neutral alternatives and considered others before adopting a system that allowed race to be considered as one of several factors in admission at desirable schools.

In Kentucky, where the 95,000-student Jefferson County district was formerly under a court desegregation order, the district's assignment program now aims for an African American enrollment of between 15 and 50 percent at each school. A federal appeals court in Cincinnati upheld the program last July.